Could Mount Pleasant move its municipal election date even if that changed incumbents' time in office?

Plain-English summary

Mount Pleasant asked in 2005 whether it could move its municipal election date and thereby alter the time current officials actually served. The Attorney General repeated earlier opinions saying a municipality could change an election date by ordinance, even if the effect was to extend or shorten an incumbent's service. The earlier analysis conditioned that authority on a reasonable public purpose rather than the personal benefit of officials, and on federal preclearance before implementing the change under the law discussed at the time.

The AG drew a line between changing an election date and expressly setting a different length for a mayor's or council member's term. State law specified two- or four-year terms, so the municipality could not create a 38-month term by ordinance. He found no state-law answer to whether a majority vote was sufficient despite dissenting council members, pointing instead to the council's own procedural rules.

Currency note

This opinion was issued in 2005. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Could moving an election date lengthen or shorten an incumbent's service?
The AG said it could under the earlier opinions he reaffirmed, because officials served until successors were elected or appointed and qualified.

Could the town set a 38-month council term for the transition?
The AG said a municipality could not set an official term other than the two or four years specified by state law, even when trying to change the election schedule.

Did the AG say a simple majority vote would be enough to change the date?
No. He knew of no state law answering that procedural question and referred to the council's own rules.

Background and statutory framework

The opinion read the municipal election-date power alongside the statute setting mayoral and council terms. It relied on earlier AG opinions about the effect of date changes on incumbents' service, and it reported no intervening legal change since the cited 2003 opinion.

Citations and references

• § 5-15-50: municipal authority to set election times by ordinance.
• Section 5-15-40: two- or four-year terms for mayor and council members under the law discussed.

Official title

Raising questions regarding the Town of Mount Pleasant possibly changing its municipal election date.

Requester

R. Allen Young, Esquire

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/december-8-2005-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/05dec8young1.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
HENRY Mc.MAsTER
,\'nDR,'\EY GE.1'\ERAL

December 8, 2005

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R. Allen Young, Esquire
Mount Pleasant Town Attorney
Post Office Box 745
Mount Pleasant, South Carolina 29465
Dear Mr. Young:
In a letter to this office you raised several questions regarding the Town of Mount Pleasant possibly changing its municipal election date. You particularly referenced a prior opinion of this office dated June 6, 2003 which also dealt with the issue of changing an election date and thereby extending the terms of the mayor and councilmen. In your first question you asked whether there have been any changes in the law referenced in the June, 2003 opinion since it was issued. Based upon my review, I am unaware of any such changes.

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You next questioned whether elected officials can shorten or extend their term in office so as to transition to a different election date. If so, you asked whether such can be done by majority vote of an elected body, even if some members are opposed to the change. The June 6, 2003 opinion stated that
...this office has issued previous opinions addressing the question of whether municipalities are authorized to change election dates when the effect would be to extend (or reduce) the tenns of office of incumbent officials. We have concluded that, as long as the exercise of this power is reasonable, for a public purpose (not for the benefit ofcouncil members and the mayor) and is precleared with the Department ofJustice before the changes are implemented, municipalities generally possess this

authority.
That opinion noted that, generally, pursuant to S.C. Code Ann.§ 5-15-50 which gives municipalities the authority to establish by ordinance the time for general and special elections within the municipality, a municipality would be authorized to change the date of its elections by ordinance.

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Mr. Young
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December 8, 2005
That opinion commented that "(i)t is obvious that a municipality cannot exercise its authority to change the date of an election without also effecting the terms of some of the incumbent municipal officers." An opinion of this office dated November 30, 1989 stated that the conclusion that a city could extend the time of an election so as to extend the term of an elected official's office would apply equally to shortening a term of office.

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In the June, 2003 opinion reference was also made to Article XVIl, Section 11 of the State Constitution which provides that officers " ... shall hold their respective offices until their terms have expired and until their successors are elected or appointed and qualified .... " The opinion concluded that "(g)iven that municipalities ... have the authority provided by general law to change the date of municipal elections ... , the terms of incumbent municipal officials would continue until the new date of the election and the qualification of the person elected." Prior opinions cited in the June, 2003 opinion had reached a similar conclusion. See: Ops. Atty. Gen. dated March 9, 2000, November 30, 1989 and July 11, 1980. While these opinions deal with the situation where the date of an election is changed, thereby either lengthening or shortening a term of office, the June, 2003 opinion also responded to the question of whether a municipal council could expressly change the terms of a mayor or council member. Reference was made to an earlier opinion of the office which dealt with the question of whether a municipality could establish three year terms for council members and the mayor. That opinion concluded that based upon Section 5-15-40, a municipality would not have that authority. Such provision states that (t)he mayor and councilmen of each municipality shall be elected for terms of two or four years.

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The June, 2003 opinion concluded that
... as the General Assembly has provided only that mayors and municipal council members shall have terms of two or four years, a municipality would not be authorized to set by ordinance a term of office other than two or four years. Legislative action would be necessary to give... (a town) ... the authority to change the terms of office of mayor and council members from four years to "4 years plus 14 months." As to your questions of whether such change can be done by majority vote of an elected body, even if some members are opposed to the change, I am unaware of any State law that comments on such question. Opinions of this office dated August 15, 1984 and March 18, 1980 generally state such procedural requirements are established by rules of the council itself. In your last question, you asked whether an elected body can set election terms in advance of the election for a period shorter and/or longer than two or four years (phasing) in order to

Mr. Young
Page 3
December 8, 2005

transition to a different election date. You indicated that a councilman has suggested a 38 month phasing term by election instead of extending or shortening a term after election. As referenced above by the prior opinions of this office, a municipality would not be authorized to change the term of a mayor or councilman, but could change the dates of the election for these offices. Therefore, in my opinion, a municipality could shorten or extend the date of an election even if the effect would be to extend or shorten the term of an elected official. With kind regards, I am,

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Sincerely,

Charles H. Richardson
Senior Assistant Attorney General
REVIEWED AND APPROVED BY:

Assistant Deputy Attorney General

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